Director of Public Prosecutions v Peterson
[2022] VCC 2321
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA
CRIMINAL JURISDICTION
CR 22-00422
Indictment No: M12123925
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA PETERSON |
---
JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Mildura |
DATE OF HEARING: | 14 November 2022 |
DATE OF SENTENCE: | 15 December 2022 |
CASE MAY BE CITED AS: | DPP v Peterson |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2321 |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Armed robbery; offender has history of drug abuse; offending committed during pandemic; plea of guilty; intellectual disability; less than midrange seriousness of offending and moral culpability; Koori court; sentencing conversation; Community corrections Order.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Eighteen month Community Corrections Order with attached justice plan
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Mr M Thackaberry |
For the Accused | Mr A. Hands | Mr H Middleton |
HER HONOUR:
Circumstances of the offences[1]
[1] Summary based on the agreed facts set out in the Summary of Prosecution Opening and marked as Exhibit A.
1Joshua Peterson, within the space of about half an hour on 10 October 2021, you committed two armed robberies on convenience stores in Mildura. Even though the items that you took were trivial, your crimes were still very serious and frightening because you brandished a knife at your victims. Your conduct was made worse by the fact that you were on bail at the time, having been released on bail for theft of a motor vehicle on 11 September 2021.
2The details of your armed robberies are as follows. At about 4.30 pm, you attended Cappy's Corner Store at 231 San Mateo Avenue, Mildura, and asked the owner of the store, Rahamathulla Shariff for a mobile phone and cigarettes. You attempted to pay for the items using your EFTPOS card but it was declined. You left the store saying you would come back, which you did about 10 minutes later.
3You then asked Mr Shariff if he could do you a favour, but he said no because you already owed him money. You were polite to start off but then said, 'I could rob you'. He told you to stop being an idiot but you again threatened to rob him, this time lifting the sleeve of your top to reveal part of a knife which you moved up and down.
4You produced a pink plastic bag from your jumper and put three chunky Kit Kat chocolate bars in it. Mr Shariff told you to return them but instead, you lifted your sleeve again to show the knife. Mr Shariff then told you he was calling the police and pressed a silent duress alarm located under the front counter. You grabbed another five chocolate bars from the front counter and left the store heading along San Mateo Avenue towards Tenth Street.
5At about 5 pm, you entered Tim's Takeaway Store at 121 San Mateo Avenue about, 700 metres away from Cappy's. You approached the front counter and spoke with the owner, Mary Delaney, and her assistant, Christine Palbas. You ordered $4 worth of chips and asked Ms Palbas for some cigarettes which she got out of the cabinet. Ms Delaney told you the price of the cigarettes and you made as if you were trying to find money in your belongings. You then asked for another packet of cigarettes and Ms Delaney added the price of the second packet to the total. You kept appearing to look for money before saying that you did not have any and that you would return later to pay. Ms Delaney became suspicious and called Triple 0. You obviously hoped you'd be given the cigarettes on the promise to pay later, but instead Ms Delaney told you to pay when you came back to collect your chips which were still cooking.
6 At that point you became aggressive and said to Ms Delaney, 'Give me the cigarettes or I will hurt you'. She again said you could come back later but you said, 'If you don't give them to me, I will hurt you. I have a knife here'. You then produced a knife to Ms Delaney and Ms Palbas, which they described as around 30 centimetres long. Ms Delaney was afraid that you would hurt her and handed you the cigarettes. You left the knife on the bench and then left the store. You were confronted by Ms Delaney's husband, Mark, on your way out, who was going to chase you but thought better of it.
7Police attended and spoke to the victims of both armed robberies just after 5 pm. They saw you running into a set of units nearby. You were arrested outside a unit and searched. They found the following items;
·a small meat cleaver in your right pants pocket (this is not the knife used in the armed robbery)
·Three Kit Kat bars and five Chomp chocolate bars stolen from Cappy's Corner Store, and a packet of Blue JPS 20 cigarettes, stolen from Tim's Takeaway, all contained in a pink plastic bag
8 Because you were COVID positive, you were deemed too high risk to interview and were remanded in custody. You declined a later request for interview. You were bailed by Mildura Magistrates Court on 29 November 2021 to reside at Wiimpatja Healing Centre for a 12-week program. Unfortunately, you breached that condition and were re‑arrested on 2 December 2021 and remanded in custody. On 21 March 2022, you were committed to this court and bailed again to reside at Wiimpatja Healing Centre for a 12-week program. Unfortunately, you breached the condition again and were re-arrested and remanded in custody.
9On 14 November 2022, you pleaded guilty before me to two charges of armed robbery and commit an indictable offence whilst on bail. A plea on your behalf was conducted before me on the same day by which time you had spent 332 days in custody. Your counsel, Mr Hands, submitted that a combination sentence was appropriate and within range. After considering all the matters put on your plea, including the contents of a recent psychological report, the prosecutor,
Mr O'Doherty, agreed that a term of imprisonment combined with a justice plan was appropriate. Whether that term of imprisonment should exceed that which you have currently served was, he submitted, a matter for me.10At the conclusion of the plea hearing, I adjourned the matter in order to obtain an extended pre‑sentence report from Corrections and a statement of your eligibility for a Justice Plan and, if so, a plan of available services.
11I have now received those reports and heard some further submissions today detailing factual information about your personal circumstances. It now falls to me to sentence you for the armed robberies. In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2]
[2]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
12Some tend towards leniency and some point the other way. No one factor automatically prevails over any other; rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
Your personal circumstances
13Turning to your personal circumstances, which were outlined in defence submissions, dated 10 November 2022, as well as in the report of Ms Christine Kennedy, provisional psychologist, dated 23 September 2022 and completed under the supervision of forensic psychologist, Mr David Ball, and in the extended pre-sentence report and justice plan disability overview report that I ordered. Ms Kennedy assessed you in person at Hopkins Correctional Centre on 16 September 2022 for approximately 100 minutes.
14You are a 28‑year‑old Aboriginal man of the Barkindji people. You grew up speaking English and Barkindji. You had a traumatic childhood. Your mother died in a car accident when you were six months old. You were raised by your aunt and uncle. You told Ms Kennedy that you had a dysfunctional and chaotic upbringing and that you were exposed to physical, psychological, sexual and emotional abuse. You recalled the household environment as angry and violent.
15You went to Chaffey Secondary School until Year 9. School was very challenging for you. You told Ms Kennedy that you were very lonely and bullied and that you had repeated prep making you feel like 'a special needs kid and needed a tutor all of your life',. In Year 9, you were expelled for misbehaving.
16You told Ms Kennedy that after you were expelled, you had no further education or training and had not done any paid work other than as a sex worker and a drug dealer. However, defence submissions and the extended pre‑sentence report that I ordered indicated that after you were expelled, you in fact worked at TAFE in administration for a period of six months with your aunt. Defence submissions also indicate that you then completed part of Year 10 and went onto do a course in photography through TAFE
17You were declared eligible to receive a disability support pension in 2010 at age 15 after you were assessed as having a mild intellectual disability. The assessor was satisfied that you have an intellectual disability because of your significant subaverage general intellectual functioning and the significant defects in your adaptive behaviour. More specifically, your verbal comprehension, working memory and processing speed were all within the extremely low range. So too was your ability to process simple or routine visual material without making errors. Your learning difficulties mean you have not become literate and that you will require ongoing support for daily living tasks.
18You are also a client of a National Disability Insurance Agency. It is not entirely clear why this is. The extended pre-sentence report indicates the NDIS plan was for your mental health and that it needs to be reviewed for intellectual disability. According to Mr Hands, who had spoken to your case worker from the National Disability Insurance Agency (NDIA) you suffered an acquired brain injury from an assault in July 2020 which put you in a coma for five months and required rehabilitation afterwards.
19Your case worker from NDIA indicated that she will seek to obtain a further special grant relating to your ABI. Mr Hands also informed me today that he intends to ensure that you have the assistance necessary to make an application under the victims of crime assistance tribunal in respect of that assault, and if that is successful, you will then no doubt receive a sum of money in addition to what you receive under the NDIS plan.
20In terms of your drug use, you started smoking marijuana when you were aged seven and stopped when you were 14. At 14, you started using ice, using 1.7 grams a fortnight. You started using heroin when you were 22 and continued to use around 2 grams a fortnight. You have also previously abused alcohol. You told Ms Kennedy that ‘drugs are a big issue’ for you and you admitted that your circle of friends had a negative influence on your life. One consideration in the sentencing conversation, which I will come to in a moment, was where you could live upon your eventual release to try and avoid these negative influences.
21You told Ms Kennedy that you experienced symptoms of anxiety and depression. Although you told her that you don't think about suicide, you also reported a suicide attempt two years ago, with no details. You are addicted to gambling, you link your gambling addiction and your drug use to your mental health issues. You told Ms Kennedy they make you feel better. You acknowledge that your gambling has caused conflict with your family and has led to you neglecting your family. You have had one long-term relationship, which lasted four years and from it you have four children; four‑year‑old twin boys and six-year‑old twin girls who live in Geelong with their mother from whom you are separated.
22There is a Family Violence Intervention Order against you. You said in the sentencing conversation that you want to have a closer relationship with your children upon your eventual release. Of course, if you are to do that, you need to make sure that you obey any Family Violence Intervention Order that is against you.
23The COVID-19 pandemic made matters worse for you. You struggled to find enough to eat and were abusing drugs. Your physical condition has improved since you have been in custody. You have gained 40 kilograms and arguably now need to monitor what you eat. You told Ms Kennedy that you consider your general health to be ‘good’.
24You have a large family. You have a twin brother, John, who is currently remanded in Langi Kal Kal. You have an older sister, Nikita, who is 31. She appeared at your plea and spoke during the sentencing conversation. You told the Corrections assessor that you had decided to live with her upon your release. You see this as an opportunity to remove yourself from negative peer influences.
25You also have five half siblings: Steven who is 40; Ash, 35; Terry, 30; Casey, 27; and Cole who is six. Your father is a tour guide at Mungo National Park in New South Wales but you have limited contact with him, apparently because he disapproves of your drug use.
26While you were remanded at Hopkins Correctional Centre, you were employed in the upholstery industry. This prison record was provided to the court.
27Before your plea, your counsel also provided the court with photocopies of four paintings that you had completed in prison as part of a Koori art course. These paintings show your connection to Barkindji culture. However, you told
Ms Kennedy that thinking about your Aboriginal heritage, 'drained your energy', and you did not want to talk about it. You also informed Ms Kennedy that you had participated in a drug treatment course, although no prison record was provided to the court.Objective Gravity of your offending and moral culpability
28Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender. In other words, how bad the offence was and how much the offender is to blame for it.
29If there was any doubt about the inherent seriousness of armed robbery, the maximum penalty of 25 years' imprisonment makes it clear. Even though you did not steal items of any great value, what you did was still very bad. Threatening people with a large knife was very frightening and very dangerous. Something could easily have gone wrong, whereby either you or your victims could have been seriously injured.
30You also chose soft targets, that is, people who were unprepared and unable to offer any resistance. Further, your victims in the second armed robbery were women. Your crimes also had a degree of premeditation in that you went into each shop armed with a knife.
31Your conduct was made worse by the fact that you had only been put on bail one month beforehand. Being on bail should have made you be on your best behaviour, but it obviously did not deter you at all. The maximum penalty for committing an indictable offence whilst on bail is three months' imprisonment, or 30 penalty units.
32On the other hand, your crimes were not sophisticated and were not well thought out. What I mean by that is you did not attempt to conceal yourself and in one case, you were known to the shop owner. Whilst there was some planning, I accept that it was likely to have been minimal. You told
Ms Kennedy that you were off your medication for schizophrenia, olanzapine, you had consumed both ice and cannabis, and that you were hungry because of COVID lockdowns. I accept that you stole items that you regarded as necessities.33Ms Kennedy assessed you as being of borderline intelligence and having a cognitive impairment. As well as having severe stimulant and cannabis use disorder, which was on remission on account of you being in custody, she said you satisfied the criteria for a diagnosis of gambling disorder, anti-social personality disorder and post-traumatic stress disorder on account of your chaotic and dysfunctional childhood environment and experiences of physical, sexual and emotional abuse. She noted that you said you had previously been diagnosed with schizophrenia and bipolar and are taking olanzapine and lithium but she saw no evidence of those conditions at interview and was unable to confirm them.
34Ms Kennedy considered that your background and personality in turn contributed to you being socially immature, impulsive and prone to risk taking and destructive behaviours, including consumption of drugs and alcohol with little insight or empathy and a tendency to avoid responsibility for your actions.
35I take into account your disadvantaged background and the impact it has had on your mental health. I also take into account your limited intellectual capacity. These are all matters outside of your control and they do somewhat reduce your culpability; in other words, how much you are to blame for your conduct. You are not to be judged the same as a person without those setbacks in life.
36However, and importantly, these offences were committed whilst you were intoxicated with drugs. You well know that taking drugs causes you to offend. This is obvious from your criminal history and you told Ms Kennedy as much. This fact increases how much you are to blame for your conduct. As your sister said during the sentencing conversation, taking drugs may make you feel better at the time but in the long run, it just causes problems for you.
37All up, as serious as your conduct was, I consider it to be less than the mid‑range in the spectrum of seriousness for your particular offences and your moral culpability likewise.
Impact of your offending
38I am required to take into account the impact of your offending on your victims and their personal circumstances.[3] One of your victims, Mr Shariff, provided the court with a victim impact statement. What you did caused him stress and made him emotional. Your offending has taken some time for Mr Shariff to get over. After the offending, whenever a customer came into his store, Mr Shariff would double check to see if they had a knife.
[3]Sentencing Act (n 2) sub-ss 5(2)(daa), (da) and (db).
39Putting aside the stress and emotional impact, you also caused him financial loss, inconvenience and wasted his time. Mr Shariff had to close down his store for a deep COVID clean as it was thought that you had the virus at the time of the offending. As a result, he lost one‑and‑a‑half days' worth of income. He was further inconvenienced by having the police attend his store to gather evidence and also having to attend court.
Current Sentencing Practices
40To promote consistency of approach in sentencing, particularly, the application of relevant principles, I am required to have regard to current sentencing practices which may be gleaned from statistics or sentences imposed in other cases, or both.
41I was not referred to any comparable cases by either counsel, however I have had regard to the most recent Sentencing Advisory Council sentencing snapshot, of December 2021, for the offence of armed robbery. The snapshot indicates that 87.1 per cent of people over the five years between 1 July 2016 and 30 June 2021, received an immediate term of imprisonment ranging from four days to 10 years with three to four years being the most common sentence at 28 per cent; 146 out of 517 non‑aggregate terms. This wide variation of sentences reflects the vast disparity in seriousness of the offence.
42Ultimately, my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Plea of Guilty, co-operation and remorse
43You are entitled to a significant discount in your sentence for the fact that you have pleaded guilty and did so at a relatively early stage. You indicated a plea of guilty to the second armed robbery at the committal but not to the first armed robbery. You then indicated you would plead guilty to all charges on 13 May this year.
44In pleading guilty, you facilitated the course of justice and took legal responsibility for your crimes. You have also spared your victims and witnesses the necessity of giving evidence at trial. Moreover, our Court of Appeal has repeatedly emphasised the high value of pleas of guilty entered during the pandemic and the need for sentences to reflect this.[4]
[4] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
45I am not satisfied, however, that your plea of guilty is accompanied by any real remorse. You did not show any remorse when you were interviewed by Ms Kennedy, consistent with your lack of empathy and limited insight. Nor did you show any remorse, as opposed to regret during the sentencing conversation. I am not satisfied that you truly understand the impact of your crimes on your victims. To be clear, you don't get punished for a lack of remorse, you just don't get an extra discount.
Sentencing Conversation
46I now turn to the sentencing conversation which occurred with respected person, Andrew Arden. This was an important aspect of your case. This was your first time in the County Koori Court. The fact that you consented to the matter being dealt with in the Koori Court Division is something I take into account. You did not have to do that. You participated in the conversation with Andrew who had known you since you were a child
47Andrew spoke to you about the armed robberies and how frightening they would have been and how you could have faced even more serious charges if you had got into an altercation with your victims. He talked to you about what you were doing with your life and how you were young enough to turn your life around and be a role model for your children. He hoped that your offending and you being locked up for it was a wake-up call for you, so that you would keep taking your prescribed medication and stay off the illicit drugs.
48Your sister was present in the conversation and it is obvious that she is a great support for you. She also spoke of how you needed to stay off the bad drugs and take the good ones, and what I mean by the good ones, is your prescription drugs, the legal ones. You acknowledge the importance of taking your prescribed medication and staying off the illicit or illegal drugs. You were honest about trying some drug and alcohol courses in prison but being kicked out because you were diverting your drugs in prison
49The law allows me to take into account your participation in the Koori Court process in your favour and I do so. I consider that you are genuine in your engagement with Andrew and the court and that the process itself was rehabilitative. I consider your participation in the sentencing conversation to be a promising thing. It shows your willingness to change and to be a better member of our community.
Your character and risk of reoffending
50I turn to your character and the risk of re‑offending. Your criminal history is concerning.
51Your first appearance in the Magistrates Court was when you were 18. Thereafter, you had a number of appearances for dishonesty, threatening and violent behaviour, drugs and breaching court orders. You have received terms of imprisonment before as well as community corrections orders which contained rehabilitative conditions. Unfortunately, none of those sentences have deterred you from further offending and you have breached your community corrections orders.
52However, you have never been put on a justice plan before and so it may be that you have never really got the help that you required given your intellectual difficulties. You are only 28 years old and there is still hope for you. As I have already mentioned, I was shown a copy of some paintings you did whilst in custody. Unfortunately, the copies were in black and white and I would have loved to have seen them colour. You have real talent and this is the sort of thing you need to concentrate on. You told the Corrections assessor that this is what you intend to do upon your release if you can get art supplies. If you can do that, you may be able to stay out of trouble. I could not say I am optimistic about your future but nor am I pessimistic. It seems to me that the sentence I am about to give you will really reveal whether you do have the capacity to turn your life around.
The burden of imprisonment
53I must consider how a term of imprisonment would be likely to impact you in the future. In some respects your time in custody so far has been beneficial as it has allowed you to get off the illicit drugs, you have put on weight, and according to your sister, you look better than you have for a long time although you have to be careful about not eating too many sweets. Nevertheless, I take into account the fact that your time in custody has been harder because of COVID. There have been periods of quarantine, occasional lockdowns, the reduction and suspension of activities and programs and personal visits. It seems likely that those effects are diminishing with time however they do remain relevant.
Purposes of Sentencing
54I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
55Further, when there is more than one charge, the total effective sentence must not offend the principle of totality meaning you must not be punished any more than is proportionate and appropriate to your overall criminality. In this case, your two armed robberies occurred within a very short timeframe.
56General deterrence is an important sentencing consideration in cases of armed robbery. People must be deterred from committing these sorts of crimes, especially against such as soft targets such as convenience stores by the knowledge that if court, they will be punished severely. You also need to be deterred from doing this sort of thing. Community protection is also important, but of course, the best way to achieve that is by your rehabilitation.
Community Corrections Order
57I have had you assessed for a community corrections order and a justice plan. You have been found suitable and have indicated your consent. I have already set out in full the matters in your favour and against in the course of these reasons. There's no need to repeat them. After weighing these competing considerations, I have concluded that all the relevant sentencing purposes can be met in your case by a sentence which involves you spending no more time in prison combined with a corrections order.
Sentence
58On charges 1 and 2, the armed robbery charges, I convict and sentence you to an aggregate sentence of 369 days' imprisonment. That sentence will be combined with a single community corrections order that will apply in respect of both of those charges.
59On the summary charge of commit indictable offence whilst on bail, I convict and sentence you to one month' imprisonment which I will make concurrent with those 369 days, so the total effective term of imprisonment is 369 days.
60In terms of the community corrections order, the order will last for one and a half years, that is 18 months.
61It needs to be that long to ensure you get all the assistance that you need and to give you the best chance of really pursuing rehabilitation and keeping out of trouble in the future. You are to report to the Mildura Community Correctional Centre within two working days of today upon being released.
62There are a number of mandatory terms pf the order, they are things such as not committing another offence, not leaving Victoria without first getting permission to do so, obeying all lawful instructions and directions of the Secretary, et cetera. They are all set out in the order, but as well as those I have imposed some special conditions and they are as follows:
·you are to be under the supervision of a Corrections Officer for the duration of the order, so you will have a corrections officer supervising you, meaning you'll have to report to that corrections officer as required and as I've already said, you have to obey all of their directions as well.
·you are to participate in and obey all the conditions of the justice plan, you are to undergo assessment and treatment including testing for drug and/or alcohol addiction.
63So as I say, the details of that order will be explained to you in more detail by either Mr Hands or Mr Middleton who is here in court, but do you understand that the order is for 18 months, it commences today and you have the mandatory conditions that apply to all orders about not committing offences, not going interstate without permission, obeying any directions that are given to you, as well as three extra conditions, which are to be under supervision, obey the justice plan and you are to participate in any drug and alcohol assessment and treatment. Do you understand all of that? And do you consent to that order?
64OFFENDER: Yes.
65HER HONOUR: Now, it is really important that you comply with that order. That's the corrections order. The reason is that if you breach the order, that will be an offence within itself, so you will be charged with breaching the order and you will have to come back to court and be dealt with for that breaching of that order.
66But in addition, if you breach the order, you're liable to be resentenced for the armed robberies, so if that happens, you may well find yourself getting more time in prison. So, do you understand that?
67OFFENDER: Yes.
68HER HONOUR: I declare that you have already served a total of 369 days pre-sentence detention, not including today in respect of that sentence and order that declaration be entered in the records of the court and the period be deducted administratively.
69If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you a total effective sentence of imprisonment of two years and six months, with a non‑parole period of one year and 10 months. Now, are there any ancillary orders?
70MR O'DOHERTY: We're just checking that, Your Honour, but I believe there would be for the knife, Your Honour.
71HER HONOUR: And also when he was arrested, he had a hatchet or something.
72MR O'DOHERTY: He had cigarettes and a machete. There's a draft disposal order which has been eLodged, Your Honour.
73HER HONOUR: Okay. I'll make the disposal order in respect of the knife and I assume the ‑ ‑ ‑
74MR O'DOHERTY: And the meat cleaver, Your Honour.
75HER HONOUR: Meat cleaver. Yes. We'll have to get that corrections order and as I say, it's in respect of the two armed robbery charges not in respect of the summary offence printed out and signed. So I will sign the order,
Mr Peterson, and then you have to sign it as well.
0